Secure Funding Pty Ltd v Brosnahan

[2012] WASC 398

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   SECURE FUNDING PTY LTD -v- BROSNAHAN [2012] WASC 398

CORAM:   MASTER SANDERSON

HEARD:   18 OCTOBER 2012

DELIVERED          :   26 OCTOBER 2012

FILE NO/S:   CIV 1418 of 2012

BETWEEN:   SECURE FUNDING PTY LTD

Plaintiff

AND

KIERAN JAMES BROSNAHAN
First-named Defendant

BLAZENKA SUNJICH
Second-named Defendant

Catchwords:

Mortgage action - Application for summary judgment - Turns on own facts

Legislation:

Nil

Result:

Judgment entered for the plaintiff

Category:    B

Representation:

Counsel:

Plaintiff:    Mr G S Tinsley

First-named Defendant             :    No appearance

Second-named Defendant         :    In person

Solicitors:

Plaintiff:    Ashurst Australia

First-named Defendant             :    No appearance

Second-named Defendant         :    In person

Case(s) referred to in judgment(s):

Deputy Commissioner of Taxation v Heaton (1997) 35 ATR 450

Trainor Asia Ltd v Calverley [2007] WADC 124

1. MASTER SANDERSON:  By chamber summons dated 24 August 2012 the plaintiff sought an extension of time within which to bring a summary judgment application and judgment on its claim.  In the alternative it sought to strike out the whole of the defence and for judgment.

2. This is what is described in the Rules of the Supreme Court 1971 (WA) as a 'mortgage action'. The defendants and the plaintiff, Secure Funding Pty Ltd (Secure Funding), entered into a loan agreement dated 7 February 2007. Secure Funding agreed to advance to the defendants an amount of up to $288,000 at a variable interest rate for a term of 30 years. As security for the loan the defendants provided in favour of Secure Funding a first ranking mortgage over their interest in a property at 29 Talbot Road, Swanview.

3. By written notice dated 19 January 2012 Secure Funding issued each of the defendants with a notice of default under the loan agreement and the mortgage.  The default notice was based on the defendants' failure to make required loan repayments on 20 November 2011 and 20 December 2011.  The plaintiff says the defendants failed to remedy the defaults within 31 days of service of the notice of default, or at all. 

4. On 13 March 2012 Secure Funding filed a writ of summons indorsed with a statement of claim seeking payment of the total outstanding under the loan agreement and vacant possession of the property.  The plaintiff was unable to serve both defendants and sought orders for substituted service against the second‑named defendant.  These orders were obtained on 14 June 2012.  The plaintiff served the second‑named defendant with the statement of claim by post on 25 June 2012.  In or about late July 2012 Secure Funding's solicitors became aware that the defendants had entered an appearance in late June 2012.  The defendants did not serve Secure Funding's solicitors with a copy of their appearance at that time or at all. 

5. On 27 July 2012 Secure Funding's solicitors sent the defendants a letter advising the defendants, as they had not filed a defence to the Supreme Court proceedings, Secure Funding was entitled to apply for default judgment against them.  On 7 August 2012 Secure Funding's…